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Mike Gerrard on “U.S. Climate Action in an Era of Congressional Hostility”

Michael GerrardThe University of Houston recently welcomed Michael B. Gerrard, a distinguished expert in environmental and energy law, to present on “U.S. Climate Action in an Era of Congressional Hostility,” covering previous and proposed federal legislation addressing environmental and climate change issues. His talk underlined the support for striking down roadblocks to current propositions and demonstrated the need for action.

Dr. Gerrard, who is Andrew Sabin Professor of Professional Practice at Columbia Law School, teaches courses on environmental and energy law and directs the Sabin Center for Climate Change Law. In his professional career, Dr. Gerrard promotes compliance with the requirements of environmental laws, aiding corporations lacking in modern controls to seek safer working conditions and renewable alternatives to coal and gas.

“We are now at a time when the science of climate change is becoming increasingly clear; there are very serious challenges we’re facing and there is a pressing necessity to reduce our greenhouse gas emissions. We’re also at a time when the international community in general is trying to grapple with these issues. The U.S. administration is using the legal tools it has, but we now have a congress that is steadfastly opposed to U.S. action on climate change,” Dr. Gerrard stated in his lecture.

Taking a brief step back to the strengthening of the Clean Air Act and Oil Pollution Act during the Bush/Quayle administration, Dr. Gerrard labeled 1992 as the last year Congress passed major environmental laws and the time when the United Nations Framework Convention on Climate Change was negotiated and signed. However, the initial framework lacked the ‘how to’ necessary to begin any action on climate change objectives.

“During the Clinton/Gore administration from 1993 to 2001, we saw the negotiation of the Kyoto protocol, the international agreement that would try to define how to achieve the objectives of the 1992 convention. The Kyoto protocol placed binding emissions reductions obligations on all of the developed countries,” said Gerrard.

In the run-up to the Kyoto conference, the United States Senate voted in opposition of U.S. entry into any international agreement that did not impose on the rapidly developing countries (e.g. China and India) obligations similar to those that would be imposed on the U.S., thus, the Kyoto Protocol was never submitted to the senate for ratification. At the same time, the U.S. Environmental Protection Agency (EPA) declared that under the existing Clean Air Act, it had the authority to regulate greenhouse gases. The EPA, however, did not utilize that authority before the end of the Clinton/Gore administration even though citizens were petitioning for the EPA to take action.

Under the Bush/Chaney administration, the EPA general counsel was replaced and with it, the claim to the authority of the Clean Air Act to regulate greenhouse gases. Yet, in 2007, the Supreme Court decided the EPA does have the authority to regulate greenhouse gases.

“In frustration, many states began adopting their own climate change laws and ten of the northeastern and mid-Atlantic states joined together to form the regional Greenhouse Gas Initiative,” Dr. Gerrard said, “a cap and trade program they hoped would spread nationwide and really act as a precursor to federal legislation.”

Moving forward to 2008, Dr. Gerrard mentioned the support of cap and trade legislation during the presidential campaign by both the democratic candidate, Senator Obama, and the republican candidate, Senator McCain. In June of 2009, after Senator Obama was elected president, the house ‘narrowly passed the Waxman-Markey bill, legislation that would ultimately set a cap on the total percentage of emissions beginning in the year 2012 and through 2050. In July 2010, the Senate reported their refusal to consider climate change legislation before the end of the legislative term, effectively killing the cap and trade proposal.  In 2011, the house began passing a series of bills to eliminate the EPA’s authority over the regulation of greenhouse gases.

When President Obama was reelected in 2012, he reaffirmed his support for action on climate change and addressed congress, saying he would act if congress continued to waver on the subject.

“So what we're now seeing,” Dr. Gerrard noted, “is a growing partisan divide over environmental issues in congress.”

Graph Michael Gerrard
LCV – League of Conservation Voters

Given that climate change is such a highly politicized issue, the current composition of congress and the number of votes needed to pass legislation, override a presidential veto or ratify a treaty; it seems unlikely that any action, either passing new measures or overturning current legislation, will occur on environmental issues.

With climate change law at a standstill at the beginning of 2009, the EPA would need to work with existing legislation (i.e. The Clean Air Act). After the Supreme Court decided the EPA has power to regulate greenhouse gas emissions, it issued an endangerment finding in 2009 demonstrating that the existing and projected concentrations of greenhouse gases including carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, as well as other harmful gases in the atmosphere are the most substantial threat to the nation’s public health and welfare. After issuing the endangerment finding, the EPA was able to pass the first GHG standards for passenger vehicles and stationary sources of air pollution.

Dr. Gerrard asserted that existing coal-fired power plants and motor vehicle operations serve as the two largest sources of greenhouse gas emissions. The existing coal-fired power plants in the U.S. are aging and most were constructed between the 1960s and 1980s. Inefficient and not held to current emissions controls standards, many are the target of the EPA’s new regulations that were proposed in June 2014. These regulations require each state to submit an emissions goal and the changes necessary to meet it. If the EPA deems the plans insufficient, a new plan will be imposed for the corresponding state. Suggested options to meet these goals are making plants more efficient, substituting natural gas for coal, using renewables or nuclear, and/or by supporting energy efficiency in customers. The last three options, as Dr. Gerrard noted, are more legally controversial because they require effort “outside the fence line of the power plant.” Lawsuits have already been filed challenging these rules with more suits to be expected. If the courts grant a stay on the rules while pending litigation is resolved, most of the work implementing them will fall on President Obama’s successor.

Dr. Gerrard also emphasized the urgency of reform. Most scientists agree that global temperatures in the 10,000+ years of human civilization fall within a specific range. The goal should be to reach no more than two degrees of warming above this level; two degrees is all it takes for some small island nations to be under water. In addition to substantially increased water levels, wet and dry climates will see a more drastic change in the years to come. Dr. Gerrard stated that U.S. policy is not consistent with a reduction of greenhouse gas emissions due to the burning of fossil fuels.  While emissions from coal are lessening in the U.S., it is being exported and burned in other countries.  Production of oil and natural gas is growing at an exponential rate due to hydraulic fracturing technologies and is estimated not to reach its peak anytime soon. With “business as usual” emissions rates, global warming could reach 5 degrees above current temperatures.

However, China has begun to take action implementing regional cap and trade programs, and in a few years, will take the best features of the pilot programs in order to make it a national program. Dr. Gerrard said it would be the most important greenhouse gas regulatory program in the history of the world if it succeeds.

Dr. Gerrard’s admittedly dismal conclusion is that it is unlikely that the United States will see any pro-environmental action to address climate change concerns.